What would television be without visuals?  The unwritten promise between police and media is that the former will provide the dirty, nasty inside story (by unnamed source, usually) so that the latter can provide breathless, lurid details that will make the people desperate to watch. 

In exchange, the cops parade the defendant in front of the television cameras so there’s something to watch as the talking heads tell the sordid tale. 

It’s symbiotic.  It’s fascinating.  It’s great television.  And it happened again.

 This is one of the  most disgraceful things police and the media do. It’s pure show without substance, and yet does monumental harm before anybody has been proven guilty of anything.  And Dominique Strauss-Kahn took his place in  the parade of shame so that we can have something to watch on the news and see in the funny papers.

To get pictures of Strauss-Kahn, reporters, photographers and onlookers staked out the NYPD unit for 15 hours, waiting for an appearance by the man who, before Saturday, was considered a strong contender for the French presidency. The walk, during which Strauss-Kahn was escorted by NYPD detectives, took place prior to his arraignment the following day for the alleged sexual assault and attempted rape of a maid at the Hotel Sofitel in New York. After the pictures spread worldwide, some French politicians and others voiced outrage at the American custom.

The problem with the perp walk is that it can undermine their presumed innocence of the so-called “perp,” or perpetrator. The U.S. Court of Appeals for the Second Circuit in 2000 considered the constitutionality question. In Lauro v. Charles the court ruled that perp walks in general were legal, but both the media and the public must have access, since the public’s right to know counterbalances the defendant’s rights.

“It’s like putting someone in the stocks,” said Ernest Lidge, a professor at the University of Memphis School of Law and perp walk scholar. Lidge qualified his statement: “At least people put in stocks already had been convicted.”

That the image of the defendant would thereafter be of a person cuffed and held by police (not one cop but two, one on each side to make absolutely certain that he won’t take one out and make a run for it), burning into the public’s eye a man shackled, broken, guilty, was the price we paid for good TV and respect for authority.  So what if there are a thousand images available of a happy, respected, robust person to put on the screen as the nasty details, according to cops and prosecutors, were laid bare.  Nobody wants to see a strong, innocent looking perp. It spoils the story.

In response to a negative reaction from the French about their American cousins shaming DSK, New York’s billionaire Mayor Michael Bloomberg said :

“I think it is humiliating, but if you don’t want to do the perp walk, don’t do the crime,” Hizzoner said.

“I don’t have a lot of sympathy for that.”

Being a big fan of Bloomberg’s, and a believer that all elected officials should first be billionaires to temper their ambition, I expect better.  Don’t do the crime?  Really, Mike?  You know better than that.

Whether DSK is guilty has yet to be determined, and this is clearly not a smoking gun case of he did it and the only thing left is to have a jury stamp it “convicted,” it serves as a pretty decent reminder that shaming first is wrong and outrageous.  Bloomberg didn’t defend the practice because the cops needed to get DSK from point A to point B, and he can’t stop the media from taking whatever pictures they want to take.  He didn’t defend it because of the serious need to cuff DSK for the safety of officers, because he’s such a violent fellow.  He didn’t defend it because they have too many cops on the street and this gave two of them something to do for a few minutes, so we weren’t paying them for nothing.

Bloomberg defended the practice because it’s humiliating,  “If you don’t want to do the perp walk, don’t do the crime.”  Maybe it comes with the New York City Mayor’s hat, but you would think a billionaire could get one that fits properly.

In preparing clients for arrest, since promises of voluntary surrender are too often worthless when there’s a camera in the neighborhood, I always tell them to stand up straight, even though it’s going to be painful on their wrists to keep their shoulder back as the strain of metal against flesh bites through their skin, keep their head and eyes up, look stoic and serious but not fearful.  And never look down to the ground or attempt to conceal their face.

It may not be possible to stop the perp walk, but with adequate preparation and some practice, we can deny them, the cops and the media, the satisfaction of capturing images of a broken, guilty man.  A proud, innocent perp walker just ruins their day.  Should it be you or your client, ruin their day too.

So what if the judges in the 6th Circuit can’t get along, and are forced to stand on opposite sides of the room based on the party of the President who appointed them.  The jets and sharks did the same thing.  Of course, they could dance really well, but then, Judge George C. Paine II knows how to shake it pretty well himself.

Adam Liptak’s  Sidebar talks about the Belle Meade Club, that special place in Nashville where the powerful can let their hair down.  If they have hair.

The Belle Meade Country Club in Nashville has about 600 voting members. None of them are women, and none of them are black. But one of them is a federal judge.

Isn’t a guy allowed to hang with his homies?  He works hard all day, wearing a robe, deciding important stuff, signing a lot of papers and listening to his clerks tell him what’s up with what.  Is that not enough for you people?  It is for all the Republic appointees on the 6th Circuit.

The ruling opens windows on two odd institutions. One is a fading country club that was once an arbiter of success in Nashville’s social, political and business circles. The other is the United States Court of Appeals for the Sixth Circuit, which sits in Cincinnati and is surely the most dysfunctional federal appeals court in the nation.

“The record before this court paints a picture of Belle Meade as an old boys’ club that considers and admits Caucasian male applicants on a different basis than African-American and female applicants,” Judge R. Guy Cole Jr. wrote in a dissent from last month’s ruling. “We federal judges must sometimes make sacrifices for the honor of the office we hold, and the judge’s membership in Belle Meade should have been one of them.”

Here’s a shocker for those of you not attuned to the country club life.  Clubs used to be restricted.  That’s the nice way to say that you, and I, can’t be a member.  A member can bring us in, where we can play a round of golf, enjoy a gin and tonic and eat the crab salad, but then we leave.  Even their wives aren’t allowed in the Men’s Grill, that special place where guys can relax in the company of other men to discuss important man things without the constant yammering of women.

But when one of the guys wears a black robe to work (as opposed to robes of other colors, which implicate different concerns), it emits an unpleasant odor.  Sure, we know that the wonderful platitudes carved over the courthouse doors are just for show, but we also know that they don’t have enough uniformed officers with guns to run around the country enforcing their judgments.  If the public doesn’t believe that the judges are worth heeding, things could get ugly.  One more topic of discussion over hors d’oeuvres.

As Judge Cole says, albeit without the forcefulness one would hope from a dissenter, there are some sacrifices one makes to enjoy a lifetime seat on the big bench and have people laugh at your jokes even when they aren’t funny.  You take a salary that would have been refused by a first year associate just a few short years ago.  You don’t use epithets on the record.  And you do not become a member of a club that excludes people of other color or gender. 

Why?  Because anyone who takes comfort in a club that discriminates based on race or sex tacitly adopts that discrimination as his own.  But the place has a great seventh hole, and what about that par 3?  Yeah, that’s tough.  The other members may be great guys, important guys, guys just like you and with whom you can comfortably talk and share.  It may have facilities that you enjoy, and very good food (not likely, but possible).  It may be your home away from home.

But you have taken an oath to dispense whatever it is your dispensing from the bench equally to all, and your life sans robe cannot fly in the face of that oath.

The decision to squint and pretend that the Belle Meade Country Club wasn’t really restricted went straight down political lines.

“Reasonable minds could — and indeed do — differ on the question of whether this club engages in invidious discrimination,” she wrote. But Judge Paine, the bankruptcy judge, had “engaged in long and sincere efforts to integrate the club” and so was blameless, Judge Batchelder wrote.

But even such energetic judges must resign, the commentary says, if the practices do not cease “as promptly as possible” and “in all events within two years.”

Judge Paine joined the club in 1978.  In 1995, he wrote a letter to the club asking it to increase it’s diversity. Around 2001, he sponsored a black man for membership. The man was dinged.  What more could you ask of this poor man?  Consider his handicap and the number of cocktails that died for his efforts.

That this was a purely political decision was painfully obvious, and a clear indication of the dysfunction within the 6th Circuit.  If you have any doubt, consider Judge Merritt:

In a follow-up e-mail, Judge Paine said he found it “remarkably hypocritical” that the Sixth Circuit had singled him out for investigation when two other judges had been members of the club. One was a federal district judge who has since retired. The other was Judge Gilbert S. Merritt, a liberal member of the appeals court and an honorary, nonvoting member of Belle Meade.

In an interview, Judge Merritt acknowledged that Belle Meade used to discriminate against blacks. But these days, he said, minority members would be welcome if they could only be persuaded to apply. “Maybe they would not feel comfortable,” he said.

Unlike Judge Paine, Just Merritt is a nonvoting member, which is the price one pays for being a liberal.  His job would be to stand out front and wave at black men driving by, hoping to attract them to membership and make them feel comfortable. 

Plenty of lawyers spend their time writing about the intersection of law and technology, but few if any are qualified to know what they’re talking about.  Aaron Greenspan, on the other hand, knows about technology.  Unfortunately, he learned a little something about law in the process.

In 2004, shortly after graduating from college, I found a series of serious security flaws in one system after another, and even considered starting my career as a computer security consultant. I discovered that the username and password needed to control South Station’s merchant wireless network were “south” and “station,” respectively (see http://www.thinkcomputer.com/cor…). I then realized that my company’s payroll vendor, a company called PayMaxx, was exposing my social security number, home address, and salary data, along with the data of many thousands of others (see http://www.thinkcomputer.com/cor…).

No, he wasn’t sent a warm thank you for discovering security flaws.  The company threatened to sue him instead.  And yet he didn’t learn.

As a slew of other security breaches appeared in the press in 2005, the GSA contracted with Unisys, a large government IT contractor, to build a software application called eOffer. The goal of the eOffer initiative was to automate the incredibly complex paper workflow necessary to approve companies for selling goods and services to the federal government. It was an expensive project requiring many programmers and resources. To secure the contract, Unisys employed one Jack Abramoff, among others, as a lobbyist in Washington, D.C. via the law firm of Greenberg Traurig LLP.

When I signed up for eOffer I was informed that I needed a digital encryption certificate from AT&T, which I obtained and installed. It quickly became clear that the system had an enormous design flaw: anyone with such a certificate–and anyone could get one–could sign in as any company in the Department of Defense’s Central Contractor Registration (CCR) database. At the time, approximately 400,000 companies nationwide were registered, including of course every major defense contractor, technology company, and almost all of the Fortune 1000. Once signed in, it was possible to add fake records, delete legitimate records, and edit records. It was also clear that the system did not actually delete data properly, which carried additional security risks. (See http://www.thinkcomputer.com/cor… .)

No, he didn’t get a medal.  Instead, he got a visit from a couple of representatives of the government.

Not long after, two armed federal agents appeared at my doorstep. One of them, who had no background in computer crime, handed me a copy of the Computer Fraud and Abuse Act of 1986, and told me that I should read it.

When the government didn’t show its appreciation for Greenspan’s informing the inspector general of the GSA about its massive computer screw up, he went to the media, generating a  New York Times article that revealed the problems.  The government was not amused, which is why federal agents appeared to enlighten him.  After going to Washington, paying a lawyer (“My lawyer, who sat silent for two hours as I answered the government’s questions, charged several thousand dollars, which the GSA refused to reimburse later on.”) and persuading the United States Attorney that he was not a malicious hacker, but just a guy trying to alert the government to some significant problems.

The GSA was eventually constrained to deal with the issue, In it’s letter to Congress, GSA Acting Administrator David Bibb wrote:

As a result of this weakness, GSA has revised its security practices and has begun to execute additional reviews during software development. This practice will enable GSA to identify vulnerabilities prior to placing the software into production,

GSA takes the integrity of its systems seriously and will make every effort to ensure that weaknesses, such as discovered in eOffer, do not occur again.

If you say so.  But that doesn’t mean there wasn’t a bad person to blame:

From the information provided, we determined that if the weakness described by the authorized user did exist, it could be exploited only by another authorized user and that the eOffer system was not exposed to unauthorized public access. Moreover, in order for even an authorized user to gain access to another party’s information, that user would have to abuse his or her system privileges and masquerade as another user by using the other party’s unique numerical identification code before any information could be accessed.

That’s right, the problem wasn’t the security hole big enough to drive a virtual Mack truck through, but the evil abusive masquerading geek who would exploit it.

The lessons about dealing with the government, rhetoric versus reality, are all too familiar to lawyers at the intersection of law and prosecution.  The government doesn’t want to hear its baby is ugly, and won’t appreciate your information or candor.  They will, however, make sure they aren’t to blame, which usually means you are.  Somebody has to be, and its not going to be them.

But there are lessons here for lawyers as well, not about the joys of federal agents or the vagueness of the Computer Fraud and Abuse Act, 18 U.S.C. §1030.  We already know that all too well.  The message is that our newest, latest, coolest thing in the future of law, technology, the stuff that makes techno-lawyers ooze from every orifice, may be replete with problems, security issues, gaps, holes, whatever, and we wouldn’t have the slightest clue.

We’re lawyers. Some may be more tech-savvy than others, but if they think they’ve got enough on the ball to find the gap that Unisys left behind, they’re nuts.  We don’t know what we’re dealing with, and the best we can hope for is to trust that someone, somewhere did a far better job than we could in making sure that our groovy technological tool isn’t a monumental sinkhole of crap.

Chances are pretty good that unless you happen to hang around with a geek like Greenspan, the only entity you have to trust is the enterprise that invented the tech itself, or the government.  Is that good enough for you?

As for some outsider who blows the whistle on technological flaws, consider how well Greenspan was treated for his efforts, and wonder how many others are prepared to stare down some armed federal agents more than once.  This is the real intersection of law and technology, and it has nothing to do with how cool you would look carrying the iPad2.

When a major international figure gets nabbed for a sex crime, it’s got to be big. Huge. That International Monetary Fund chief Dominique Strauss-Kahn was accused of forcing a hotel maid to give him oral sex was custom-made for titillation and outrage.  Assuming, of course, it happened.

Within the first 48 hours, the story changed so much that I hesitate to bother with it.  First, he was alleged to have fled his hotel to jump into a first class seat headed for Paris that he left his cellphone behind in the room.  Then, it turned out that he checked out of the hotel in the normal course, had lunch with his daughter and, afterward, took his seat on the airplane as had been the plan when he purchased the ticket a week earlier.

When it turned out that DSK, as he’s known in France when not called the Great Seducer (and how many men would hate to be called that, except under these circumstances?) could not have engaged in sex crimes at 1 p.m., the allegations miraculously shifted to an hour earlier, noon, to defeat his alibi.  The police were supposedly called about 1:30 p.m. on Saturday, which means Lucy got some ‘splainin’ to do.

DSK also cooperated with the cops by letting them fondle his manly form in search of evidence to be used against him.  No doubt, his lawyer at that moment thought cooperating with the cops would buy him goodwill, demonstrating laughable cluelessness.  Then Ben Brafman was brought in, and made the appropriate bail pitch, albeit offering $1 million where it would have been $1000 for any other defendant.

Bail denied. Defendant remanded.

But prosecutors said that Mr. Strauss-Kahn’s resources, the lack of an extradition treaty between the United States and France, and the defendant’s history were all reasons that he should not be granted bail.

He had “the means, the motive and the connections to flee.”  And indeed, he does. 

Judge [Melissa C.] Jackson, the supervising judge of Manhattan Criminal Court, indicated that she was concerned about Mr. Strauss-Kahn’s being stopped at the airport.

“When I hear that your client was at J.F.K. Airport about to board a flight,” she said, “that raises some concern.” The judge also indicated that she would not reconsider her bail decision, even if Mr. Strauss-Kahn were to agree to wear an ankle monitor.

It certainly does raise “some concern.”  And the balance of the information certainly dispels that concern.  Whether DSK committed the crime alleged or not, this isn’t the sort of crime for which bail would not be granted.  It might be high bail based on the nature of the offense and potential sentence, say $100,000, or low bail based on the nature of the defendant, a man whose entire life is vested in his responsible position in the international community, and who can’t exactly run off to Morocco and hide.

But he could sneak on a train to Montreal wearing a fake mustache and grab the first flight to Aix-en-Provence, living out the rest of his life as an itinerant painter.  Judge Jackson saw that coming a mile away.

Which creates the current conundrum.  Does this mean that all wealthy French guys must be remanded?  Is this the legacy of Roman Polanski?  Well, yes. That’s exactly what this means, because the decision to remand ignored the many considerations that otherwise apply to a bail determination, all trumped by the argument that he has “the means, the motive and the connections to flee.”

The problem is this generic argument, applicable to all wealthy French people, is either insurmountable or not.  If it is, then it was certainly overcome here, where DSK turned over his passport and other papers, offered big bail and even to wear America’s favorite jewelry, the ankle bracelet.  What’s left, maybe have a kidney removed and held captive until the case is over?

The fact that DSK was taken off a plane ends up being a non-starter, unless there is some basis to believe that he planned the sexual assault a week in advance, timed it perfectly and had his escape route lined up.  What this decision shows is how rhetoric, the expression of a theoretical risk, makes judges tremble with fear.  Judge Jackson has no plans of being the judge who cut DSK free, so that he could run away to France and laugh at America with a glass of that vile Pernod in his hand.  No judge wants to look bad, and no judge really wants to look bad when the world is watching.

So DSK could abscond.  So could pretty much anyone else.  You don’t have to be particularly wealthy to buy a train ticket to Montreal.  Even the flight to France is relatively affordable on the internet.  And once there, the same lack of an extradition treaty applies to everyone.  There’s nothing special about DSK’s ability to flee.  That he speaks the language is no big deal; any fool can order an eclair at a Patisserie and live out the rest of his life happy.

Brafman will await his next court appearance, known in New York criminal jargon as 180.80 day when the prosecution either has indicted or the defendant must be cut free without bail.  DSK will no doubt be indicted, at least for something (it need not be the actual crime for which he was arrested to do the trick), to keep him in.  The mechanics of challenging a bail denial in New York are a bit convoluted, but go through a Supreme Court Justice to an Appellate Division justice for bail pending appeal. 

The decision of Criminal Court Judge Jackson declares war on France, even though it likely didn’t seem that way at the time.  With some greater thought, it would seem likely that the next judge to hear the issue of bail will decide that warn on France isn’t a great idea, particularly when the decision comes from an arraignment court in Manhattan and when DSK has offered everything short of a kidney to assure his return to court.

Until then, DSK is hanging on the Rock and the American system, yet again, looks ridiculous to the rest of the world.  The only question now is whether sanity will prevail or they will hire some guy to chisel into the limestone the words, “the means, the motive and the connections to flee.”

Update:  Cooler heads prevailed and war has been averted.  Justice Michael Obus granted bail to DSK’s new attorney(!),  Zuckerman Spaeder’s Shaun Naunton, along with Bill Taylor.  $1 Million and house arrest did the trick, because our borders aren’t secure enough to keep DSK from sneaking on a jet plane.

The Supremes have spoken, and when the decision is penned by Justice Sam Alito, it’s not a great sign.  But Kentucky v. King could have been worse.  It also could have been better.   Some  of the commentary, taken from writings about the decision rather than the decision itself, have demonstrated a rank misapprehension of what the decision says.

The issue was limited: What police conduct constitutes the unlawful creation of exigent circumstances such that the police cannot lawfully enter a residence without a warrant.

At Volokh Conspiracy, Orin Kerr sums up the decision well:

In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exigency — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed:

In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “‘Police, police, police’” or “‘This is the police.’ ” App. 22–23. This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily).

In anticipation of oral argument, I  framed the argument this way:

The law is already clear that police cannot manufacture an exigency in order to circumvent the warrant requirement.  The issue here is whether their knock, announce and whatever, constituted the creation of exigent circumstances, or just the sort of routine investigatory conduct that police do, mirroring what normal folks are allowed to do.

After all, anybody can knock on a door and announce that someone is out there, so why shouldn’t the police be permitted to do so as well without rupturing the Fourth Amendment?  Anybody can knock on a door and ask (nicely) to speak with the good folks inside.  If the good folks inside aren’t in the mood to chat, they have the right to say “go away.”  The police have done nothing wrong, and nothing more wrong, than anyone else would be entitled to do.  They can’t be blamed for the occupants’ reaction to their knock.

The decision took the path anticipated, that engagement in conduct that does not violate the 4th Amendment, but results in some reaction that gives rise to what may constitute exigent circumstances, does not fall within the exception to the exception to the rule.  It’s not that I’m prescient, but that I couldn’t imagine any reason to grant cert if not to do some harm to the doctrine.

This case does not hold that noise or silence, toilet flushing or lack thereof, whispered voices or screams, constitute exigent circumstances.  That question has been kicked back to the Kentucky Supreme Court on remand.  While it may eventually come to pass that it’s all a big Catch-22, we’re not there yet.  Don’t give them any more than Alito does.

The decision does, however, hold that police can take action that gives rise to exigent circumstances, whatever they may eventually be held to be, and lawfully take advantage of it to enter a residence without a warrant.  This is bad enough.

The tipping point in Justice Alito’s ruling is whether the action taken by the cops is, or threatens to be, unconstitutional in itself.  If the cops threaten to break down the door and come in, then they would be unlawfully manufacturing exigent circumstances.  If the cops merely knock and announce that they’re cops, then not.

Aside:  The Kentucky court found that the cops did, indeed, demand entry into the apartment.  Justice Alito disappeared this irksome detail by judicial magic, sprinkling verbal fairy dust over the facts.

Respondent argues that the officers “demanded” entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion. He relies on a passing statement made by the trial court in its opinion denying respondent’s motion to suppress.

His “passing statement” is anyone else’s express finding of fact.  Try using this trick before the court the next time a great decision has a nagging detail that kills your position.  Tell the judge that Justice Alito sent you and see how that works.

There is an obvious flaw in the decision, even assuming that the distinction between lawful and unlawful conduct giving rise to exigent circumstances, whatever they may be, makes any sense.  The court pretends that the sort of conduct that regular folks engage in regularly, like knocking on a door and saying, “hi, there, it’s Joe,” works the same for the police.  It doesn’t.  Only a fool, or someone inclined to overlook reality, would think so.

Whether it’s submission to the shield, or revulsion to the shield, the shield gives rise to special reactions.  Cops know it and depend on it.  The implications of a straight knock and announce are pretty clear to most subjects of the sovereign.  React or suffer the consequences. And so they do.

Then there is the convenient recollection, as occurred in the underlying case here, where the cops don’t remember making any demands, though the people inside remember them clearly.  The police officer may testify that he knocked nicely, announced his presence in dulcet tones, and never once threatened to shoot through the door and kill everyone inside if they don’t open the door immediately.  The defendant’s testimony to the contrary stands little chance of prevailing. That’s just how it works.

So again, the Supremes have developed a construct which bears little resemblance to life on the street, or in the hallways of apartment buildings as the case may be.  Ruth Bader Ginsberg knows otherwise, but she’s a loner on this one.

The saving grace, if that phrase applies at all, is that the Court didn’t hold that the sounds emanating from within, or lack thereof, was obviously an indication of the destruction of evidence.  It will take a case or two more before we reach that point.  Let’s make them work for it.

On the one hand, there’s a critical need for trust between lawyer and client.  On the other, there’s a critical need for detachment.  A defendant feels the former, but the latter isn’t an aspect of the relationship that keeps the client warm at night.  Friendship and caring, the sense that the lawyer is vested in your well-being, allows the defendant to sleep.

Joel Rosenberg had such a long-standing and close relationship with his lawyer and friend, David Gross.  He knew him to be an excellent lawyer, and he trusted him implicitly,  To talk about David with Joel was to hear unshakable admiration, the sort that any lawyer would be proud to claim in a client.  Many clients place blame on their lawyer for a system that, at best, appears to serve them poorly.  After all, it’s the lawyer’s job to tame the system.

So there are few things a defendant wants from his lawyer more than sincere friendship.  It’s a dangerous thing.

David Gross was very much Joel’s friend.  And Joel was David’s friend.  They were close before Joel was arrested for bringing a lawfully carried gun into the waiting room of the Chief of Police’s office, and grew closer still when David, dear friend that he was, stood beside Joel in court.

While having a friend stand close brings a sense of warmth and comfort, it also makes it hard to see things from a distance.  One of the key benefits of having a lawyer is his detached perspective, his ability to separate his feelings from his thinking.  To be blunt, a lawyer has to view the case with a cold eye.  Anything less produces unrealistic and clouded counsel, tainted decisions colored by emotion that poorly serve a client’s needs.  As I’ve told many a client, “if you need a friend, get a dog.”  I’m your lawyer.  Other lawyers prefer to hold hands, as they know it makes the defendant like them for the moment. My preference is to be liked after the case is over, with the defendant walking out of court beside me.

But the relationship between David and Joel was not like the normal pseudo-therapist, inappropriately emotional sort that happens with unfortunate frequency.  This was a deeper, stronger friendship that comes only after years of interaction, mutual respect and admiration.  This was the real thing.  If new-found friendship is problematic, long-time friendship is a nightmare.  And that’s what developed here.

David Gross has moved to withdraw as Joel’s lawyer.  I’ve read the papers, and they are ugly.  Not so much for what they say as the basis for the motion, which is ugly and, in my view, remarkably inappropriate, but what they say about the relationship.  The papers don’t read like a lawyer who seeks to sever his duty to the court and client, but an angry friend.  Maybe even a spurned lover.  They speak of personal hurt, of insult, of affront and offense.

David’s complaints about Joel address legal fees and attitude.  The former arises from Joel’s wife having bought Joel a $1000 guitar for his birthday, selling some of Joel’s guns to finance the purchase.  David, who took the case knowing that Joel was fired from his job because of his arrest, and lack the available funds to pay in the ordinary course of affairs, was angered to learn that money came in and went out, but not to him.

It wasn’t that he doubted Joel would make sure that David was paid. It was that this felt like one friend smacking another in the face.  In his papers, David describes this as buying “luxury” items and living lavishly, all while he had a balance due.  Hyperbole aside, it probably wasn’t a great choice.  It also wasn’t that big a deal.  The bill would be significant when the trial was over, and this guitar would neither make nor break the ability to pay.

Lawyers know that clients continue to live while defending themselves against accusations.  They eat. They wear clothes. They sometimes have birthdays, and when things have gotten kinda miserable in their lives, they sometimes buy something a bit more extravagant than they should.  Only when it cuts against the tacit expectations of a trusted friend do such small slights, the sort that happen with every client all the time, get blown up into the death of representation.

From the court’s point of view, it may well be that David’s decision to defend Joel without being paid up front was his own choice.  If it’s not working out as well as David hoped, then he needs to make better business decisions.  But, of course, this wasn’t a business decision to begin with. This was a relationship between friends.  Had it been a business decision, this guitar would have meant nothing. Only a friend could take offense at something so trivial and understandable.

Then there’s the attitude, where David challenged Joel for not behaving as one would want in an arm’s length representation.  Joel wasn’t a great listener, busy pursuing his agenda and fighting the enemies made over years of challenging the gun-ocracy.  The people Joel disparaged over the years were having Schadenfreude overdose, loving his pain.  David, who runs with the same crowd, was put in the middle of these battles, and directed Joel to stop fighting the same wars Joel has been fighting for years.

While I only know Joel digitally (meaning “virtually,” and having nothing to do with fingers), he had always been a wee bit on the snarky side.  Like me.  Smart and opinionated, he expresses himself with sarcasm and makes his points from the orthogonal aside.  If I know this, David must know it far better.

I guess it wore on David, who related private communications between lawyer and defendant in his moving papers to show that Joel was not merely non-compliant, but to suggest his snark should be taken literally and reflected a hostility toward Gross.  No one who has spent a few minutes around Joel would buy this, but it served to show that Joel had a bad attitude.  Of course, old friends talk to one another like old friends, but when you want to make a point, details like that are easily ignored.

There was likely no lawyer in Minnesota who Joel felt would be more trusted, more caring, than David Gross.  It’s not that he was wrong in placing his trust in David.  It was that the relationship between the two was close.  Too close.  Much too close.  Just as a wife can’t perform surgery on her husband, a dear friend can’t hold the responsibility of representing a dear friend.  The demands of detachment are too great.

This isn’t to say that a lawyer and client can’t maintain a personal friendship, camaraderie, and still have a viable professional relationship.  But it requires the lawyer to be capable of stepping back, away from the feelings that are shared between friends and separating his personal feelings from his professional service to a defendant.  It has, and can, be done.

Joel hurt David’s feelings.  Given that David was sucking wind on his fee, and was suffering for his relationship with Joel in the course of Joel’s battles against others in the gun community, it would have definitely been wiser for Joel to have been more compliant and sensitive toward David.  He could have been a better client, and likely would have been had he not thought that David, his dear old friend, would understand.

But Joel was still the client, and David still the lawyer.  At least on paper.  And as the lawyer, it was incumbent on David to stand on higher ground, step back from any hurt feelings of friendship and put the representation of his client ahead of his feelings.  This, he could not do.  They were too close.

So the economy remains problematic and jobs are hard to find.  That doesn’t stop milliennials from believing that they, each of them individually, will do spectacularly well in their lives.  They believe.  From the New York Times, Tali Sharot writes:

THIS month American college seniors will don caps and gowns. As they await receipt of their diplomas, they will absorb lessons handed to them by the accomplished men and women who deliver commencement speeches. More often than not the speakers will be outliers: rare individuals who made it against all odds. More often than not their message will be “dreams come true … take chances … if you try hard enough you will succeed.”

“Don’t know that you can’t fly, and you will soar like an eagle,” Earl E. Bakken, founder of the medical technology company Medtronic, told the University of Hawaii’s class of 2004. “You have to trust that the dots will somehow connect in your future,” Steven P. Jobs told Stanford’s 2005 graduates.

The thing about outliers is that they’re outliers.  There is a reason why they are getting the honorary degree, providing the final note of inspiration before sending graduates on their way, and the cashier at the Piggly Wiggly is not.

We now know that underestimating the obstacles life has in store lowers stress and anxiety, leading to better health and well-being. This is one reason optimists recover faster from illnesses and live longer. Believing a goal is attainable motivates us to get closer to our dreams. Because of the power of optimism, enhancing graduates’ faith in the American dream by presenting them with rare examples as proof may be just what the doctor ordered. Their hopes may not be fully realized, but they will be more successful, healthier and happier if they hold on to positively biased expectations.

About ten years into practice, criminal defense lawyers talk amongst themselves, usually over an alcoholic beverage, how they can continue doing this.  The exuberance of youth is gone.  The belief that truth and justice will prevail is the set up for a punchline to a joke (appeal immediately!!!).  It’s disheartening going into court, day after day, only to be smacked again, first by the judge and then by the client.  Why bother?

For those who began their careers with a twinkle in their eye and ideals in their heart, this is where cynicism becomes overwhelming, the sense that there’s no winning for trying.  It’s where lawyers stop worrying about trying and only about getting paid.  It’s where lawyers give up, and yet continue.

As a charter member of the  legal  curmudgeons club, much of my written efforts are intended to take the bloom off the rose for the unduly optimistic.  They may feel good about themselves, but their optimism puts clients at grave risk, their inability to reasonably assess the risks means that those who pay the price for their lawyerly delusions, the defendants, are being advised to take chances, employ tactics, that reflect the lawyer’s hopefulness.  When things don’t go as well as hoped, the lawyer goes home, feeling pretty darned awful, and the defendant goes to prison, feeling even more awful.

There’s a flip side, even to a curmudgeon.  Once you accept the fact that life isn’t fair, that platitudes are only good for engraving on lintels and that the life you’ve chosen means you’re going to have a perpetual headache, you stop feeling bad about the law, about yourself, about the unpaid bills, and start realizing that the best we can hope for is to help one person.  That’s not such a bad thing.  And if we’re relatively fortunate, we can become serial helpers, and do it again.

Shalot’s point is that unreasonable optimism, the sort that let’s people believe they need not save for retirement or check out that lump in their breast, is just foolish, but the loss of optimism, the belief that you can accomplish something, will waste your life.

There is no point in bemoaning every perceived wrong and injustice in life.  We’re not so special, so wonderful, that we can fix it all.  Let it go.  At the same time, every once in a while we help a person, we save one person from falling into the abyss.  When that happens, it’s magnificent.  It may not register on your personal Richter Scale at the time, but you can bet it changed the life of a defendant, her family, her children. 

I had a chat with one of my protégés yesterday, who finished a trial in a case that I sent to him.  From the outset, it looked like a dead loser, a decent guy who made boneheaded decisions that created the appearance of guilt when there need not have been any.  He did it for a woman, who was the one who called me about the case, She was a monumental PITA on the phone, and must have called me back a dozen times to ask more questions.  At no point did she comprehend that her man sat in jail for doing her bidding.

The trial resulted in acquittal on the top two counts and hung on the bottom two.  It was a great verdict, given the facts, and my friend should have been very proud of himself for having done an excellent job.  Instead, he was depressed, feeling as if he had blown the one chance the defendant had to win.  Retrial will not be as kind.

I metaphorically smacked him through the telephone.  “Who are you to be so arrogant as to whine about achieving less than perfection?” 

Maybe someone reading this post will turn out to be the next Gerry Spence, if you believe his press releases.  But the rest of you, of us, won’t be the outlier.  So we’re relegated to banging our head against a wall day after day, and taking our victories in pieces, one case, one client, one issue at a time.  This is what we do.  This is the best we can hope for.

When you expect too much, and don’t achieve it, you fall into the funk and give up.  When you expect nothing, you will most assuredly achieve it, but there will be purpose to your being a lawyer.  When you grow up and realize that you do help others, you can make a difference, even though it won’t happen every time, and that the only choice available is to continue to try your best every time, you will have served a purpose.

Life may be a toilet, but it’s better to look at it as a toilet half full.  Helping one person, one life, is still worthwhile, even if you can’t save them all.  Now when can I get my honorary degree?

When the jury came back with guilty x 14 against Raj Rajaratnam, billionaire head of the Galleon hedgefund, there was no shortage of folks thrilled that another fatcat inside trader was taken down.  A  juror described their deliberations:

We all wanted to give Raj the benefit of the doubt. I wanted to believe he was an honest man. How could someone so smart and rich already be involved in something so horrendous?

– Leila Gonzalez Gorman, a 44-year-old teacher from Westchester County, who served on the jury that found Raj Rajaratnam guilty of insider trading and conspiracy.

The  defense team (and team is used in the sense of a football team) led by combative Akin Gump lawyer John Dowd, whose  fingers remained spry despite his years of experience. is estimated to have set Raj back about $40 million.  I know plenty of lawyers who could have lost this case for half that.  The best Dowd could come up with in summation was:

Summing up his defense of Galleon Group founder Raj Rajaratnam, attorney John Dowd tried to channel the late Johnnie Cochran, telling jurors: “If it’s public, you must acquit.”

This is why old, white shoe lawyers are not allowed to rap.

But there’s one question that hasn’t managed to get a whole lot of play here, largely because it’s been hidden behind our old friend, “common sense,” which covers up myriad gaps in thinking.  Who is harmed by insider trading?

The idea is that some guy has information that you and me, regular schmoes on the street, do not.  When he trades stock because he knows what we don’t, it’s unfair.   Stephen Bainbridge explains:

WSJ reporter Jonathan Cheng breathlessly reported that:

In scoring their biggest insider-trading victory in a generation, regulators have a message for a nation of nervous individual investors: When it comes to information about stocks, the playing field is getting a little more level.

The little guy isn’t so sure.

Piffle. Insider trading does not harm investors — little or otherwise. [Bainbridge shameless marketing effort deleted].

The balance of Bainbridge’s explanation is so prolix as to require FDA approval and a warning about reading while driving, but I can paraphrase.  People buying/selling at the time some insider is buying/selling will do so anyway, as there are always shares available to be bought/sold, so the fact that some insider is making money has no causal affect on the little guy’s losing anything. He would have lost regardless. He’s got more, but I fell asleep while reading. If you can stay awake, more power to you.

The bottom line is that we’re all insiders to some extent.  We know stuff that someone else doesn’t, and use it every day of our lives to our benefit if we can.  Most of us lack information of the sort that can produce financial gains, much to our chagrin.  So in an over-abundance of Schadenfreude, we relish laws that make it illegal for rich guys like Raj to use what they know to make money when we can’t.  In essence, the argument is that if we can’t do it, neither can you.

Who are we kidding?  It’s used every day by everyone who can, ourselves included.  We use innate intelligence, education, observation to make decisions based on things that others can’t see.  If we’re lucky, we talk to people who know more about something than we do and learn from them, using the bit of knowledge gained.

This isn’t just the big, fat rich guy. This is the guy on the loading dock who sees widgets flying out the bay and realizes, “hey, my company is on to something this time,” and loads up.  You aren’t watching the loading dock so you don’t know this, but the guy loading pallets does.  If you’re selling stock because you think the widgets suck, while he’s buying up the stock you’re selling, you feel cheated.  But nobody made you sell, or decide to sell at that particular moment.  You had your reason, maybe your erroneous assessment or maybe your need for some ready cash to buy that shiny new iPad.  He just knew more than you did.

It’s called information asymmetry by the jargonistas, and an unlevel playing field by the prosecutors.  As if there is ever a level playing field.  As if there is anything wrong with the fact that the playing field isn’t quite level.  We know, assuming we aren’t complete morons, that there are people who are paying far closer attention to industries, companies, and who are trained in how to interpret signs and information, who will always be a step ahead of us.

Knowing this, we try to ride their coattails whenever possible, because we know that we aren’t in the loop and will always be lagging behind those who know more than we do.  Anyone who thinks otherwise should put in his request for a job on a collective farm immediately, so he gets a room with a great view.

The government, feeding upon populist feeling that people who know more shouldn’t have a leg up on the rest of us, made it a crime to trade stock on knowing things that is not public information.  As Preet Bharara knows, just as Rudy Giuliani knew before him, this is great for business and a real career maker, play to the anger of the mob.

After successfully prosecuting Raj Rajaratnam for insider trading, Southern District U.S. Attorney Preet Bharara issued a statement, saying that “Unlawful insider trading should be offensive to everyone who believes in, and relies on, the market.”

Do people really “believe in” the market?  It sounds like a religion, or perhaps a cult.  To those who pray to money, it’s probably a good analogy, but to the rest of us, it’s a tool to be used at best in the hope that we end up with greater financial security than not.  For anyone who lived through the dot com crash, who watched ten years of savings disappear overnight because we “believed” that the market must know something or they wouldn’t be bidding up shares of garage companies to Olympian heights, we learned a lesson about relying on the market.  Don’t.  It’s a game played by others, and the best we can hope for is to find ourselves on the right side of the game at the right moment.

But the government has made it a crime for people to play the game better than others, because it makes the losers of the game feel better.  As for not so poor Raj, he knew that by playing the game too well, he could go to prison.  The fact that it shouldn’t be a crime doesn’t make it acceptable to break the law.  That’s the sucky part of the social contract, but still one to which we must adhere.

Raj will join the ranks of the immortals, like Boesky and Milken, but your house is still worth half of what is was five years ago, your IRA is still in the toilet and your job is on a plane to Bangalore.  Feel better yet?

It only takes  one year of law school to know all you really need to know about the law, which is what makes Daniel Fischer qualified to pronounce the obvious :  People don’t really need lawyers.  Even computers can do it, at $249 a pop.

In 2008 Missouri residents Gerald T. Ardey and Chad M. Ferrell decided to form a remodeling company. They paid an online service called LegalZoom $249 to draw up the paperwork. By all accounts, they have no complaints about the documents.

But Ardley and Ferrell want money from LegalZoom anyway. They have sued the Los Angeles provider of online legal documents on behalf of themselves and every other LegalZoom customer in Missouri for triple what they paid, under the theory the service has engaged in the unauthorized practice of law.

A set up?  Apparently so, as the greedy lawyers descended like vultures on the treble damage carcass.

Like most class actions, this is about the money. Specifically, the treble damages and presumably rich fees available to the lawyers who are really behind this case. But there’s another wrinkle to the LegalZoom litigation: By suing an automated document-preparation firm, these lawyers are trying to protect themselves from competition.

A double whammy, not only the big payday from a class action, but the death of the inexpensive alternative that could put the avaricious out on the street.  Evil lawyers. 

Fischer invokes the name of USC lawprof Gillian Hadfield, who has sought ways for the law to be less expensive, more accessible to ordinary people.  

My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs.

But Hadfield isn’t a hater.  She’s a lover, a person who seeks to find a way to solve a dilemma, not merely point the finger of blame at the evildoer and encourage the citizenry to storm the castle with torches a’blazing.  Fischer, on the other hand, just hates lawyers, and ascribes all manner of venal intent.

As proof, Fischer points to the ABA’s effort to redraft the rules as regards the unauthorized practice of law.

Among other things, it would prohibit non-lawyers from “giving advice or counsel to persons as to their legal rights or responsibilities,” and “selecting, drafting or completing legal documents or agreements that affect the legal rights of a person.”

That could stifle the competition between lawyers and nonlawyers, for sure.  And really, isn’t the law all about enhancing competition with non-lawyers, because, you know, law is easy.

The ABA and lawyers like Van Ronzalen maintain that unauthorized practice of law rules are there to protect consumers. But the FTC, in its 2002 letter, said there is “no evidence” consumers are hurt by competition for legal services in areas such as real estate transactions, wills and trusts, taxes, labor regulations and investments.

No evidence?  I bet this comes as a surprise to all those litigants fighting over the busted homes deals, will contests, IRS jeopardy assessments and brokerage houses wasting investments accounts in bad buys and heavy fees. 

Gillian Hadfield tries to stretch the boundaries to find a way that the law isn’t financially out of reach for regular folks who do regular things that the law, in the great wisdom of legislators, judges and, yes, lawyers, touches.  There isn’t much that happens to people every day that doesn’t come within the law’s tentacles, and that presents a problem.  But Hadfield isn’t foolish about it, and tests her ideas against the reality that disputes do arise, legal problems do exist, and people, left to their own devices, do end up getting horribly entangled in very real legal issues.  She seeks a way out, but doesn’t rush blindly in the abyss.

Daniel Fischer shuts his eyes and takes a leap.  Fischer’s article should appeal well to his target audience, people who want legal services without having to pay without the slightest thought of what it means to be on the receiving end of an unpleasant transaction.  Nobody needs lawyers when there’s no problem at the end of the rainbow.  When there is, all the hand-wringing, second-guessing and teeth-gnashing in the world won’t let a person go back and do it right the first time.

In a sense, criminal defense lawyers have no horse in this race, as LegalZoom can’t touch my business and has no interest in trying.  If it was just about money, then I wouldn’t waste a second of my time worrying about them stealing business from those lawyers whose livelihoods depend on real estate closings or drafting wills.  Hey, let the other guy fight for his bread and butter. It’s not my problem.

But being a lawyer means that we don’t suspend our concern for others when there’s no discernible hit on our own wallets.  At least that’s what it’s supposed to mean.  It makes a whole lot of difference to nice young family on the corner whether they understand and appreciate why they should choose Uncle Sam rather than good buddy Lou (or vice versa) to be the executor of their Last Will and Testament, rather than have their sweet children learn after they’re gone that they won’t be going to college. 

There is no question but that Hadfield is right, that we need to address the unaffordability problem, given the pervasiveness of the law in everyday life.  This is a discussion that must be had.  But we don’t need simplistic fools pandering to the angry and ignorant.

Ironically, Daniel Fischer may well prove to be one of the best shills for greedy lawyers around, since the natural by-product of his position will be massive, needless, litigation down the road, when all the computer driven papers turn out to fail to serve their purpose, fail to protect people from themselves, and generate this great avalanche of lawsuits that will suffice to pay for a new car for every lawyer in America.

And all of this could be avoided with a little bit of thought and a lot less simple-minded anti-lawyer demagoguery. 

In the law, there have been certain very specific places which no court, no judge, is bold enough to breech.  The front door of a person’s home, his castle, was one such place.  No more.

The Indiana Supreme Court, in a 3-2 decision, has taken the state of law since the King John’s signing of the Magna Carta in 1215 and decide that it no longer serves our “modern” world.  In Barnes v. State, the court held that the sanctity of our homes is a thing of the past.

We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest— as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (“But in arrest situations that are often ripe for rapid escalation, one‘s  ‘measured‘ response may fast become excessive.”).

Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in “hot pursuit” of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (“Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.”). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment.

[T]he common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on . . . the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

In Miller v. United States, 357 U.S. 301, 313–14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

Id. at 307. The same is no less true today and applies equally to forces of the State.